Sentencing Class @ OSU Moritz College of Law

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  • Commenting on each others’ mid-term papers…

    can and should get started in the comments to this post.  And, upon request (or based on my own assessment of which comments merit added attention), specific comments can and will be transposed into a new post (which in turn can and should enable continued and more focused commentary).

    Most essentially, everyone is urged to recommend at least one of the mid-term paper (and as many as appropriate) that you think would merit publication and/or wider circulation either as is ASAP or in some modified form at some future date.

  • Seeking reactions to Eastern State video and on prison as a sentencing output

    Mug-set  As promised, here is a space to enable discussion of today's video about Eastern State Penitentiary and more generally about prisons as out modern default sentencing "output."  If you are interested in learning more about Eastern State, check out this terrific website (and also this special opportunity to get your own ESP "mug-shot" mug shown here).

    More broadly, I plan to start our next class together discussing whether there is a modern viable alternative to imprisonment as a default presumptive sentence for most serious crimes.  It would be great if this discussion could get a running start in the comments to this post. 

  • Specific interest in particular offense conduct and offender characteristics as sentencing factors

    Though I am prepared and eager to discuss whichever offense conduct and offender characteristics that students find most interesting as sentencing factors, there are a few factors that I want to give special attention in our class on March 10.  Specifically, in class I will be especially eager to hear your thoughts on these potential sentencing factors:

    Offense conduct:  

    A.  Role in the offense

    B.  Number of images in child porn downloading offense 

    C.  Amount of money "at risk" in credit card identity theft

    Offender characteristics:

    D.  Age

    E.  Drug dependence

    F.  Military service

    Especially if you have strong and/or unique perspectives on any or all of these sentencing factors, feel free to start sharing your views in the comments to this post and be certain to raise you hand and your voice in our coming classes.

  • Sign up for re-scheduled NY Federal Defender field trip on March 24

    As mentioned in class, I have reschedled the snow-postoned invitation to speak with the Federal Defenders of New York, Inc downtown for the afternoon of Wednesday, March 24.  As before, I think the Defenders can host up to five students along with me, so please indicate in the comments if you would like to come to what should be an informative and fun get together.

    This session will take place at 1pm, so I suspect the group will need to leave straight from our class to head downtown.  As before, I may try to find a time to connect that afternoon with some NYC federal judges, and I also probably will not be able to avoid migrating over to Chinatown for dinner.  Seminar students are invited (but not at all required) to hang out downtown as long as they wish as part of this "field trip."

  • Some twists on consideration of acquitted conduct

    There are too many stories that surround the concept of acquitted conduct to cover them all, but I wanted to provide some links to some of these stories as recently covered in my main blog for anyone interested in continuing to think about these issues of what offense conduct can/should be considered at sentencing.  Here are just a sample of some coverage:

    And, providing an example of the different settings in which this issue can arise is an interesting new Second Circuit ruling in Vega v. Lantz, No. 08-4748 (2d Cir. Mar. 2, 2010) (available here).  In Vega, the panel reverses a district court's ruling granting relief to a Connecticut inmate who complained about his designation as a sex offender based on the fact that he had been acquitted of sexual assault (though convicted of first-degree assault and kidnapping) after horribly abusing a "sixteen-year-old girl, with whom he had a sexual relationship, when he was twenty-nine-years old." 

  • Supreme Court rules in favor of Curtis Johnson on ACCA issue

    As you may recall, we discussed the case and potential sentencing fate of "Tommy Johnson" in our first seminar session this semester.  Today, the Supreme Court ruled in favor of the real defendant, Curtis Johnson, on whom our case facts were based. 

    I encourage everyone to read the (relatively short) SCOTUS ruling in Johnson, which is available at this link, and to then think about the various broad "meta-topics" we have discussed in class in light of what the Supreme Court said (and did not say) about Curtis Johnson's case.

  • Snow day readings on revising the MPC sentencing provisions

    I briefly mentioned at the end of class this past week that the American Law Institute is in the midst of revising the Model Penal Code's sentencing provisions, and that I have been critical of some of the structural changes that the MPC revision is advocating.  If you want to do some snow day reading of my writings on these matters, check out this piece from the September 2009 issue of the Florida Law Review, which is titled "The Enduring (and Again Timely) Wisdom of the Original MPC Sentencing Provisions."

    In addition, you can find other terrific (and relatively short) readings on the Model Penal Code's new sentencing proposals in this issue of the Florida Law Review.  As always, comments are welcome and encouraged on these topics.

  • Reconnecting on Feb 24 with the help of lots of notable current events

    I have heard great reports about the class this past week from our two kind guest lecturers.  When we (finally!) get the chance to reconnect this coming Wednesday, I would be happy and eager to provide any kind of direct follow-up to what you covered this past week (and students are encouraged to use the this post for any follow-up comments or requests based on the guest presentation).

    In addition to any needed follow-up, I plan for this week's class to involve mostly reconnection after we've been away from each other quite a while thanks to snow days and other complications.  Specifically, here are my main agenda items for this week's class on Feb 24:

    1.  Confirm due dates and expectations for mid-term assignment and final white-paper

    2.  Wrap up focused discussion on the death penalty with emphasis on appreciating the importance (and interplay) of the distinct concepts of discretion, disparity, discrimination and sentencing severity. 

    For this part of the class discussion, consider how you (or others) would answer this question: Would you prefer a modern justice system in which the 500 worst murderers each year all got executed or one in which only 50 of these 500 worst murderers were executed, but that some (hard to identify) discriminatory factors will probably play a role in selecting which exact 10% of the worst 500 murderers get executed?

    3.  Discuss which (of so many) interesting current-events developments we might want make a special focal point for focused discussion in the weeks before Spring Break. 

    For this part of the class discussion, consider these posts of note from around the blogosphere:

    As always, students are welcomed and encouraged to get a running start on a discussion of these (and other) topics via the comments to this post.

  • After the snow day… two special guests to talk about federal sentencing practice

    During our (cancelled) class on Feb. 10, I was planning to review the basics of federal sentencing law as a prelude to our two pracitioner guests who will be taking over the class on Feb. 17, 2010, when I have to head out of town to participate this symposium about federal sentencing law. 

    Obviously, snow got in the way of my plans.  But I remain confident that our two guests will still be able to facilitate an engaging and informed discussion of federal sentencing practice as long as class members have all read (and re-read) the first part of Chapter 3 in our textbook. 

    Also, I can use this space to provide an introduction to our planned guests. Representing the big-firm and/or former prosecutor perspective is Mark D. Harris of Proskauer, whose firm bio includes this description of his practice and background:

    Mark D. Harris is a Partner in the Litigation & Dispute Resolution Department and co-head of the Appellate Group.  His practice focuses on appellate litigation, criminal enforcement, and complex civil litigation.  He represents institutional and individual clients in connection with government investigations, prosecutions, and civil disputes, with a special emphasis on sentencing….

    From 1997 to 2002, Mark served as an Assistant U.S. Attorney for the Southern District of New York, during which he prosecuted a broad spectrum of federal crimes, including health care fraud, financial fraud, and corporate embezzlement…. He has been a member of the Board of Editors of the Federal Sentencing Reporter since 1996 and is a frequent contributor.

    Representing the small-firm perspective is Harlan J. Protass, whose runs his own firm with a bio page that includes this description of his practice and background:

    Harlan J. Protass is a committed advocate with close to fifteen years of experience representing individuals and corporations in criminal, regulatory and commercial litigation matters.  He has counseled targets, subjects and witnesses in cases involving securities fraud, insider trading, tax evasion, money laundering, antitrust price-fixing, enterprise corruption, embezzlement and larceny, structuring, perjury and obstruction of justice….

    As an Adjunct Professor of Law at the Benjamin N. Cardozo School of Law and the creator of the Second Circuit Sentencing Blog, Mr. Protass is also a recognized expert in the application of the United States Sentencing Guidelines.  Mr. Protass regularly challenges guidelines calculations and other sentencing factors, and frequently obtains sentences below recommended guidelines.

    Mr. Protass previously served as Special Counsel at O'Shea Partners LLP, and as a litigation associate at Squadron Ellenoff Plesent & Sheinfeld LLP and Milbank, Tweed, Hadley & McCloy LLP.

    Students will earn my gratitute (and class participation credit) by using the comment section here to pose some issue or questions they hope to have our guests discuss. 

  • Trip now CANCELLED… like our class on 2/10

    Though snow has apparently shut down schools for Wednesday, I am still planning to head to the Federal Defenders in the early afternoon (if they will still have me).  Students remain welcome to join me, though I expect I will plan another similar field trip later in the semester so that everyone can enjoy the experience without a worry about snow.  Please let me know in the comments if you are still interest in going with me.

    UPDATE:  The federal courts downtown are now closed on 2/10, which means the Federal Defenders' Office is closed, which means our field-trip will need to be another day.  Oh well.  I am shooting for March 10 or March 24 as a make-up date.

  • Some “scientific” and “academic” discussions of death penalty deterrence

    Though we did not have time for me to finish connecting my themes of scientific discovery and deterrence theory in the context of the death penalty, I do have space on this blog to link to lots of (totally optional) reading on the topic of whether the application of the death penalty in the United States may actually save innocent lives. 

    Specifically, a collection of some of the recent scientific-data-crunching research on on the deterrent effect of capital punishment is available here from the Criminal Justice Legal Foundation.   In addition, a few years ago Professors Cass Sunstein and Adrian Vermeule created a stir with a provocative law review article suggesting that new deterrence evidence might make the death penalty morally required for states concerned with value of life.  In this older post you can find links to this paper and to various responses it has generated.

    If you do some Google searching, you can quickly find lots of other websites with lots of other death penalty deterrence discussions.  But you will generally find that folks/organizations against the death penalty are often eager to stress studies and evidence undercutting deterrence claims, and that folks/organizations for the death penalty are often eager to stress studies and evidence bolstering deterrence claims. 

    In the comments to this post and in class next week, I would like to hear thoughts about whether folks believe this kind of bias is inevitable and unavoidable in all studies/debates about deterrence (whether in the death penalty context or in other criminal justice settings), or whether I should continue to hope that someday will we have good enough scientific tools and smart enough researchers to come to a definitive conclusion as to the "true reality" of deterrence in the application of particular types of punishment.

  • Sign-ups for afternoon field trip to Federal Defenders office on Feb.10

    As I mentioned in class, I have been invited to speak with the Federal Defenders of New York, Inc downtown on the afternoon of Wednesday, February 10, and I can bring up to five students along. Please indicate in the comments if you would like to come to what should be an informative and fun get together (assuming you are a sentencing geek like me).

    Since this session will take place right next to the federal courthouse downtown, I may also try to find a time to connect with some NYC federal judges and I also probably will not be able to avoid migrating over to Chinatown for dinner.  Seminar students are invited (but not at all required) to hang out downtown as long as they wish as part of this "field trip."

  • Important (pre-)class activities for last week of January

    A quick weekend post to say sorry for hogging up all the air-space in last week's class as I provided a (too lengthy) "who sentences" overview of some of the ideas and themes in Chapter 2.  This coming week, I promise that our class on Jan. 27 will be much more dialogue than lecture, especially as we turn more formally to the always controversial and dynamic topic of the death penalty.  In preparation for this week and beyond, I wanted to make sure we were all on the same page administratively by going over a few matters:

    FIRST:  It is critically important for me to receive (ASAP via email or under my office door in Room 140) a completed version of at least the first page of the pre-class questionnaire (available here).  I want to tabulate some "results" from student responses, which requires me to have as many responses as possible.

    SECOND:  I plan to spend the first part of this week's class discussing the short mid-term "think piece" and the final "white paper" assignments for this course.  Please come to class armed with any and all questions (and ideas) about these assignments.

    THIRD:  I am eager to do another lunch with students after class on Wednesday, so keep your after-class schedule open if you want to take advantage of your latest (but not last) chance for a free lunch.

    FOURTH:  I have this new post at my main blog that can and should provide another basis for discussing and debating modern death penalty theory and practice in class this week.  (Of course, there is lots in the death penalty parts of Chapter 3 of the textbook that should also serve this end.)  As always, students eager to pad the class participation part of their grade should use the comments to this post as an opportunity to get our class discussion about the death penalty (or any other topic) off to a running start.

  • You be the judge: what sentence would you give to Gilbert Arenas following his plea?

    As detailed  this Washington Post article, which is headlined "Arenas awaits sentence on gun charge, fate in NBA," the gun fun had by NBA star Gilbert Arenas last month has now made him a great subject for discussion and debate in a sentencing seminar.  I have asked this same sentencing question in this post at my main blog, and here are the key legal basics to keep in mind as reported by the Post:

    Arenas won't know whether he must serve jail time until his March 26 sentencing and remains free until then.  The government indicated it will not seek more than six months, although the judge can give Arenas anywhere from probation to the charge's maximum term of five years.  Guidelines call for six to 12 months.

    I am especially interesting in having students think about these Chapter 2 "who sentences" topics as we contemplate Arenas's possible sentencing fate:

    1.  How should the fact that Arenas is suffering a multi-million dollar "punishment" from the NBA and the Washington Wizards impact Arenas's sentencing outcome?

    2.  How should the fact that DC's advisory sentencing guidelines impact Arenas's sentencing outcome?

    3.  How should the fact that prosecutors have agreed not to seek a prisoner term of more than six months impact Arenas's sentencing outcome?

    4.  Are there any victims of Arenas's offense of one count of carrying a pistol without a license in the District of Columbia whose interests should be considered?

    5.  How should the fact that Arenas agreed to plead guilty impact Arenas's sentencing outcome?

    6.  If Arenas were to start doing prominent and significant anti-gun-violence community service, how should that fact impact Arenas's sentencing outcome?

    7.  Should any sentencing outcome be subject to appeal (by either prosecutors or Arenas)?

  • Ideas and suggestions for guest speakers and/or field trips

    I mentioned in class that I know folks in and around NYC with lots of different kinds of experiences with state and federal sentencing systems.  I am happy and eager to invite these folks to our class to be guest speakers, and I also would like to arrange some field trips to watch, for example, a sentencing in federal district court or a sentencing appeal in an appellate court.  But I am eager to arrange speakers and/or field trips (which would require taking up some of your non-class time) only involving people and places and topics that really interest students.

    Consequently, I hope all students in the class will try out the comment feature of this blog by indicating what types of guest speakers and/or field trips they would find exciting.  Judges, prosecutors, and defense attorneys are all obvious (and valuable) possibilities, but perhaps some students have some novel or provocative ideas and suggestions.  (Of course, stay realistic: I would love to get Michael Vick and Plaxico Burress and Donte Stallworth all to come to talk about their experiences with different sentencing systems, but my contacts and powers are pretty limited.)

  • More background on Johnson v. United States

    I mentioned in class that the supplemental problem involving Tommy Johnson is based on a real case now pending before the US Supreme Court.  The case is Johnson v. US, and this webpage at SCOTUSwiki provides lots of background on the technical legal issue in Johnson that is currently before the Supreme Court.  That page also provides links to all the briefs filed in the Supreme Court.

    Because many students are interested in mandatory minimum sentencing provisions, and especially because the Armed Career Criminal Act (“ACCA”) is among the most important (and most severe) federal mandatory minimum sentencing provisions, I encourage everyone to take a little time to check out some of the briefs in Johnson.  For law geeks like me, the Brief for National Association of Criminal Defense Lawyers in Support of Petitioner is especially interesting because it argues that "the rule of lenity has special force in interpreting criminal statutes that impose a mandatory minimum sentence."

  • Welcome to version 3.0 of this blog (supporting now a Sentencing Seminar at Fordham)

    Welcome to the SECOND re-launch of a this blogging adventure.  This blog started two years ago, with the uninspired title of Death Penalty Course @ Moritz College of Law, to facilitate student engagement in the Spring 2007 course on the death penalty that I taught at OSU's Moritz College of Law. 

    Though I closed this blog down not long after that course ended, I was pleased to see all the students' hard work as reflected in the archives still generating significant traffic and much of the posts remain timely.  Consequently, as when I geared up for teaching Criminal Punishment & Sentencing in Spring 2009 at The Ohio State University Moritz College of Law, I decided to reboot this blog to allow the new course to build indirectly in this space on some of the materials covered before.  In both classes, I was generally pleased with how this blog helped promote a new type of student engagement and with on-line media with students in the 2007 class.  (Even after nearly six years of focused blogging at my main blog, I continue to be amazed by what can be discovered through the process of blogging.)  

    Now, circa January 2010, I am gearing up for teaching a Sentencing Seminar as a visiting professor at Fordham Law School in New York City.  Because we have a traditional text for our 2010 Sentencing Seminar, I am not yet sure how much of a role this blog will play in course activities.  But, especially because a lot of new exciting sentencing developments seem likely in 2010 (as noted in posts here and here), I suspect this space will stay active just by trying to keep up with current events.

    WELCOME!

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  • Former judge Samuel Kent gets sentenced to 33 months imprisonment

    This updated Houston Chronicle piece provides an early report on the outcome of a sentence case that we spent lots of time with in class.  Especially since students surely have lots of other matters to deal with this week, anyone who finds the time and the energy to discuss this outcome will be rewarded with extra bonus class particulation points.

    UPDATE:  Keep the good comments coming, as I have on my home blog:

  • Some SCOTUS death penalty news and notes

    This week has already brought some notable death penalty action in the Supreme Court, and these blog posts over at my main blog about all the action has generated some interesting debates in the comments:

  • My availability for conferences and my desire for continued commentary

    As I have mentioned to some of you, for the week of April 27, I will be available for conferences only on Monday and Wednesday afternoons.  The following weeks, I am available most afternoons, though a scheduled appointment (ideally via comments to this post) is the best way to ensure I am in my office when you would like to come by.

    All students who have not yet had a conference about their mid-term paper should try to book a time.  And even those who've had that conference are welcome to book more conference time to discuss in more detail their plans for the final white paper (which is due, with no extensions, on May 14).

    In addition, as I mentioned in our last week of classes, you can still earn class participation credit via blog commentary here.  I likely will post some "fresh" sentencing news in the days ahead, and here are links to some recent posts from my main blog that touch on topics we covered in class at various times:

  • Monday Bies moot in faculty lounge from 3pm until….?

    The moot argument in in the Bobby v. Bies case (briefing here) will take place in the faculty lounge starting at 3pm, and I hope everyone eager to take advantage of this opportunity will come by at whatever time possible.

    I also hope that anyone who attends any part of the moot will consider discussing the experience or on the case more generally in the comments to this post.

  • Setting up conference times

    As I mentioned in class, I am eager to have individual conferences with all students about their mid-term and final papers the week of April 20th.  I am free just about every afternoon from 1pm on, except for when we have the scheduled moot on Monday and our class times Wednesday and Friday. 

    I do not expect most conferences need to be more than about 20 minutes, and so I hope students will just announce convenient times here in the comments and plan to stop by then.  If afternoon times do not work for anyone, feel free to suggest morning alternatives any day after Tuesday.

  • Briefs for the Bobby v. Bies case

    As promised, here are all the merits briefs for your review in the Ohio capital case, Bobby v. Bies, coming before the US Supreme Court later this month.  Though I do not expect everyone to attend the Monday moot, I would be grateful for suggested questions (or other reactions to the briefs) in the comments.

    Ohio's merits brief in Bobby v. Bies as Petitioner: Download Bies Pet

    Bies's merits brief in Bobby v. Bies as Respondent: Download Bies Resp

    Ohio's reply brief: Download Bies Reply

  • Some local specifics for the application of federal sentencing guidelines

    As documented here, the US Sentencing Commission has recently released its "District, State, and Circuit Statistical Packets." In the USSC's words, "Each packet contains a set of figures, tables, and charts comparing selected national sentencing data to data from cases sentenced in each judicial district. Data is also aggregated by circuit and by state (for states in which more than one judicial district is located)."

    Here are the links to local packets:

    Students will get extra super bonus class participation points for noting in the comments any special or interesting data they can mine from all these materials

  • Topics of student interest in the closing weeks?

    Because we got distracted by the (important) story of mandatory minimum sentencing statutes (both in policy and in practice), next Wednesady's class will focused primarily on wrapping up the guidelines debate concerning Judge Kent and working in the story of Blakely and Booker.  Though I suspect and fear that the Blakely/Booker story in turn will carry over until next Friday, that will still give us at least two classes to cover any (though surely not all) topics that may have to date slipped through the cracks.

    So, as I suggested in class, I encourage students to use the comments here (or my e-mail) to report on topics of interest for our last few classes.  I won't promise a first-come, first-serve response, but I will do may best to make sure in class we get to sentencing topics of greatest interest in our waning hours together.

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